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SUPREME COURT OF INDIA (FROM DELHI)

JANATA DAL (SAMAJWADI) V/S H S CHOWDHARY

Date of Decision: 28 August 1992

Citation: 1992 LawSuit(SC) 534

Hon'ble Judges: S Ratnavel Pandian, K J Reddy

Appeal Type: Criminal Appeal; Writ Petition (Cri

Appeal No: 304 to 311 of 1991; 114 of 1991

Subject: Constitution, Criminal

Head Note:

Constitution of India, 1950Articles 32 and 226 -- Public Interest litigation -- Locus standi to file such litigation-- Action should be for redressal for public wrong or injury and in a private action,the litigation is by polar where two parties are locked in a confrontal controversypertaining to determination of legal consequences unlike in public action -- Strictrule of locus standi applicable to private litigation is relaxed in public interestlitigation and a broad rule is evolved giving the right to locus standi to anymember of public acting bona fide and sufficient interest in instituting an actionfor redressal of public wrong -- But who is not a mere busy body or ameddlesome interlopper, since the dominant object of such litigation is to ensureobservance of provisions of the Constitution -- Thus were FIR was filed by CBIagainst persons invited in Bofors, a petition by a citizen to quash suchprosecution at the threshold was not maintainable since no public interest wereinvolved.The petitioner H.S. Chaudhary before the special judge filed petition under Article51-A proclaiming being that he being the General Secretary of an organisation,calling itself as Rashtriya Jan Parishad, devoted to uphold the rule of law, has got

a fundamental duty to inform the court regarding activation of the complainantCBI in the said case which has tarnished the image and credibility of the nation.According to him prosecution has been male-volently launched with rancourstimulated by political vendata after Shri V.P. Singh became the Prime Ministerwho have with his colleagues who have attributed mendacious charges publiclythat there was payment of kickbacks and receipt of bribe from Bofors. But thelitigation filed by him does not satisfy the definition of public interest litigationand he has absolutely no locus standi to approach the court. A perusal of thepetition filed by H.S. Chaudhary before the special judge and the High Courtclearly unfolds that Mr. Chaudhary appears to be very much concerned with thepersonal and private interest of the accused in the criminal case and there isabsolutely no involvement of public interest and not even a single ray ofcharacteristic of public interest of litigation is visibly seen. The petition of Mr.Chaudhary was, therefore, not maintainable.

Criminal Procedure Code, 1973Schedule 482 -- F.I.R. filed by C.B.I Bofors case -- The High Court in suo motoaction directed the office to issue notice for quashing the F.I.R. on the groundthat it did not disclose any offence prima facie -- The action of the High Court wasuncalled for and not warranted -- The powers possessed by the High Corut underSection 482 are very wide and very plaintitude of the powers requires greatcaution in its exercise -- The High Court being the highest court of the Stateshould normally refrain from giving a premature decision in a case where in theentire facts are extremely incompetent and hazy, more so when the evidence hasinto been collected and produced before the court -- The High Court has takenextreme view that the court can take judicial notice of any illegality beingcommitted by the Court with a view to prevent injury being caused to the knownor unknown aggrieved party even when the investigation is at the threshold.Judgement of the High Court set aside.Criminal Codes are cloth with inherent power to make such orders as may benecessary for the ends of justice. The powers possessed by the High Court underSection 482 of the Code are very wide and the very planitude of the powerrequires great caution in its exercise. Such power should not be exercised tostifle a legitimate prosecution. The High Court being the highest court of the Stateshould- refrain from giving a premature decision in a case wherein the entire factsare incomplete and hazy. In the instant case C.B.I, filed an F.I.R. against a personallegedly involved in Bofors Kick backs, a citizen filed a petition whereby publicinterest Litigation seeking to quash the prosecution but single judge of the High

CourtLOCUS STANDILocus Standi -- Public interest litigation -- The Action in public interest litigatingshould be for redressal of public wrong or injury -The requirement of locus standiof a party to a litigation is mandatory because the legal capacity of the party toany litigation whether in private or public action in relation to any specific remedysought for must be ascertained, however, the strict requirement of locus standi isrelaxed in public interest litigation and a broad rule is evolved which gives theright of locus standi to any member of the public acting bona fide and havingsufficient interest in instituting an action for redressal of public wrong or publicinjury, but who is not a mere busy body or a meddlesome interpolar, since thedominant object of such litigation is to ensure observance of the provisions ofthe constitution or the law which can be best achieved to advance the cause ofcommunity or disadvantaged group, the individuals or public interest bypermitting the persons having no personal gain or private motivation or anyother/consideration but acting bona fide and having sufficient interest inmaintaining an action for judicial redress for public injury to put the judicialmachinery in motion.In the instant case CBI filed FIR against some persons involved in BoforsKickbacks. A citizen of India filed a petition by way of public interest litigation forquashing the FIR and proceedings and single judge of the High Court acceptedthe same and directed the office of the High Court to register a case so that hecould exercise his revisional and discretionary powers and later on took suomoto proceedings to quash the FIR. A perusal of the petition filed by the suchpersons namely, H.S. Chaudhary before the special judge, the High Court clearlyunfolds that Mr. Chaudhary appears to be very much concerned with the personaland private interest of the accused in the criminal case and there is no absolutelyinvolvement of public interest and and the litigation cannot be held to be in thenature of public interest litigation to vindicate an effectuate public interest andtherefore, such petition was not maintainable

Acts Referred:Constitution of India Art 226, Art 32Code of Criminal Procedure, 1973 Sec 482, Sec 397

Final Decision: Appeal disposed

Eq. Citations: 1993 CrLR 10, 1992 (3) CurCriR 326, 1992 (4) SCC 305, 1992 (Supp1)

SCR 226, 1993 AIR(SC) 892, 1993 AIR(SCW) 248, 1992 (3) AllCriR 299, 1992 (3)Crimes 199, 1993 CrLJ 600, 1992 (5) JT 213, 1992 (2) Scale 338, 1993 SCC(Cri) 36,1992 (12) SPJ 333

Advocates: A D Giri, Altaf Ahmed, Ram Jethmalani, K G Bhagat, P S Poti, PrashantBhushan, Jayant Bhushan, Dipa Bhushan, P K Dey, Lata Krishnamurthy, M N Shroff, ASubhashini, A Subba Rao, Ashok Bhan, Anil Katiyar, P N Bhan, R K Dixit, A MKhanwilkar, A K Khare,

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RAMA KANT MISHRA V/S SHAHUJI MAHARAJ KANPUR UNIVERSITY AND ORS, 1996 LawSuit(All) 553NIRANJAN TRIPATHY V/S STATE OF ORISSA AND OTHERS, 2011 LawSuit(Ori) 157COURT ON ITS OWN MOTION V/S STATE OF H P AND ORS, 2010 LawSuit(HP) 412MAHILA JAGRAN MANCH V/S STATE OF KARNATAKA, 1997 ILR(Kar) 2110KOCHARYA S/O KHATRYA VALVI V/S STATE OF MAHARASHTRA & ANR, 2010 AllMR(Cri) 1400APDDC STAFF AND WORKERS UNION V/S GOVERNMENT OF ANDHRA PRADESH, 1999 6 ALD 357

WELFARE SOCIETY OF ORISSA V/S UNION OF INDIA (UOI), REP BY ITS SECRETARY DEPTT OF COAL AND 3ORS, 2010 LawSuit(Ori) 441PREMCHAND JUTE MILLS LIMITED V/S REGIONAL PROVIDENT FUND COMMISSIONER, 2002 93 FLR 1107

MUKESH SON OF BAL MUKUND; HEERA LAL SON OF RATAN SINGH AND GUDDU SON OF LATE BHAGWAN

SINGH @ BHAGGO V/S STATE OF UTTAR PRADESH THROUGH PRINCIPAL SECRETARY AFFAIR OF HOME,

GOVERNMENT OF UTTAR PRADESH, 2005 LawSuit(All) 968MOHD MUSA SAMI V/S STATE AND ORS, 2010 LawSuit(J&K) 359V C RAAM SUKAESH V/S STATE OF MADHYA PRADESH, 2008 4 Crimes(MP) 10INDER MOHAN GOSWAMI V/S STATE OF UTTARANCHAL, 2007 12 SCC 1

N G KARUNAKARAN; A ABDUL FAROOK V/S CHAIRMAN, NATIONAL HIGHWAYS AUTHORITY OF INDIA;

MUNICIPAL COUNCIL, PERAMBALUR MUNICIPALITY GRADE III, 2005 AIR(Mad) 248BALCO EMPLOYEES UNION (REGD) V/S UNION OF INDIA, 2002 2 SCC 333MONICA KUMAR V/S STATE OF UTTAR PRADESH, 2008 8 SCC 781

KARAM CHAND V/S UNION OF INDIA, 2002 LawSuit(P&H) 1224P KALIDASS V/S CENTRAL BOARD OF FILM CERTIFICATION REP BY ITS REGIONAL OFFICER; CHAIRMAN,

REVISING COMMITTEE; UNION OF INDIA REP BY CHAIRMAN, CENTRAL BOARD OF FILM CERTIFICATION;

CEE (I) TV ENTERTAINMENT LIMITED REP BY MR MURALI MANOHAR; MR MAHARAJAN, 2004 LawSuit(Mad)1082

RADHA DUTTA AND ORS V/S STATE OF WEST BENGAL, 2012 LawSuit(Cal) 53DIGHI KOLI SAMAJ, RAHIVASI SANGH, JAGANNATH AMBAJI V/S UNION OF INDIA & ORS, 2009 5 BCR 97

TAMMINEEDI BHASKARA RAO V/S STATE OF ANDHRA PRADESH, REP BY PUBLIFE INSURANCE

CORPORATION PROSECUTOR, 2007 CrLJ 1204

NILAMBER MISHRA V/S UNION OF INDIA, 2000 AIR(Pat) 150RAKESH KUMAR V/S STATE OF JAMMU AND KASHMIR, 1998 CrLJ 1486

NARMADA BACHAO ANDOLAN; STATE OF MADHYA PRADESH; NARMADA HYDRO-DEVELOPMENT

CORPORATION V/S STATE OF MADHYA PRADESH & ANR ; NARMADA BACHAO ANDOLAN & ANR, 2011

LawSuit(SC) 532TEK CHAND JAIN V/S DELHI STATE THROUGH DELHI ADMINISTRATION DELHI, 1993 4 AD(Del) 1017NOVA STILS INDIA LIMITED V/S PUNJAB NATIONAL BANK, 2000 86 DLT 159

SYED ALI AZAM V/S STATION HOUSE OFFICER, BANJARA HILLS POLICE STATION, HYDERABAD, 2003

LawSuit(AP) 1320SIRAJIN BASHA S/O T ABDUL RAZAAK AND ORS V/S B S YEDIYURAPPA S/O SIDDALINGAPPA AND ORS,

2011 LawSuit(Kar) 1466DELHI MUNICIPAL WORKERS UNION (REGD ) V/S MUNICIPAL CORPORATION OF DELHI, 2000 88 DLT 281AMBEDKAR BASTI VIKAS SABHA ANR V/S DELHI VIDYUT BOARD, 2000 87 DLT 170

OTTAVIO QUATTROCCHI V/S CENTRAL BUREAU OF INVESTIGATION, 1998 75 DLT 97

MADHAVSINH SOLANKI V/S STATE, 2007 5 AD(Cri) 71R KASTHURI RADHAKRISHNAN, CHAIRPERSON MADRAS CITIZENS, PROGRESSIVE COUNCIL V/S

INSPECTOR OF POLICE, 1994 LawSuit(Mad) 627R KASTHURI RADHAKRISHNAN, CHAIRPERSON MADRAS CITIZENS, PROGRESSIVE COUNCIL V/S

INSPECTOR OF POLICE, 1994 LawSuit(Mad) 628D SIVA PRASAD V/S GOVERNMENT OF ANDHRA PRADESH, HIGHER EDUCATION (EC) DEPARTMENT, 20075 ALD 828

JAGANNATH CHOUDHARY V/S RAMAYAN SINGH, 2002 5 SCC 659

BHANU CONSTRUNCTIONS COMPANY LIMITED REP BY ITS DIRECTOR, B PRASAD V/S ANDHRA PRADESH

STATE ELECTRICITY BOARD, REP BY ITS CHAIRMAN, 1994 3 ALT 395

GURUVAYUR DEVASWOM MANAGING COMMITTEE V/S C K RAJAN, 2003 7 SCC 546

GOPAL CHAKRABORTY V/S STATE, 1996 LawSuit(Cal) 309STATE OF MADHYA PRADESH V/S AWADH KISHORE GUPTA, 2004 1 SCC 691

DATTARAJ NATHUJI THAWARE V/S STATE OF MAHARASHTRA, 2005 1 SCC 590

K Neelambal V/S Solaman Reddy, 2009 LawSuit(Mad) 2410JATAN KUMAR THAOSEN AND ANR V/S STATE OF ASSAM AND ORS, 2007 3 GauLT 42

C KUPPUSAMY V/S CHIEF ELECTION COMMISSIONER, 2007 CrLJ 3483

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SURESH KUMAR AGGARWAL V/S KISHAN KUMAR AGGARWAL, 2007 LawSuit(Del) 1245DELHI VILLAGERS DEVELOPMET V/S GOVERNMENT OF INDIA, 2008 LawSuit(Del) 29ASHOK KUMAR PANDEY V/S STATE OF WEST BENGAL, 2004 3 SCC 349

KANSING KALUSING THAKORE V/S RABARI MAGANBHAI VASHRAMBHAI, 2006 12 SCC 360

SUJIT V/S STATE OF DELHI, 2002 96 DLT 200

HIDUSTAN PESTICIDES AND ANOTHER V/S STATE OF HARYANA, 1997 LawSuit(P&H) 1549LALITHAMMA V/S STATE OF KARNATAKA, 1996 1 KarLJ 1

SHER BAZ KHAN V/S STATE OF U P AND ORS, 2010 LawSuit(All) 466JHON OLIVER JOSHEF V/S STATE OF GUJARAT, 2007 LawSuit(Guj) 2441DEVINDER SINGH MAKAN V/S CENTRAL BUREAU OF INVESTIGATION, 2007 98 DRJ 727

Y N KASHYAP & ANR V/S CBI & ANR, 2012 LawSuit(Del) 376STATE OF UTTARANCHAL V/S BALWANT SINGH CHAUFAL AND OTHERS, 2010 3 SCC 402

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CONSUMER ACTION GROUP REPRESENTED BY ITS TRUSTEE V/S UNION OF INDIA (UOI), BY ITSSECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS AND ORS, 1994 1 MadLJ 481

LOK HITRAKSHAK SAMITI V/S STATE, 1999 LawSuit(Guj) 735ZANDU PHARMACEUTICALS WORKS LTD V/S SHARAFUL HAQUE, 2005 1 SCC 122

B SHIVALINGAIAH V/S STATE OF KARNATAKA, 1994 2 KarLJ 189

CH JAGANNATHA REDDY V/S CHAIRMAN, VISAKHAPATNAM PORT TRUST, VISAKHAPATNAM, 1998 3 ALT

536

DEVINDER GUPTA V/S UNION OF INDIA, 2006 128 DLT 337

J S BINDRA V/S STATE OF GUJARAT, 2012 LawSuit(Guj) 29ANDHRA PRADESH SCHEDULED TRIBES EMPLOYEES ASSOCIATION V/S ADITYA PRATAP BHANJ DEV, 2001

6 ALT 433

VIKRANT KAPOOR V/S STATE & ORS, 2012 LawSuit(Del) 242THAKUR BAHADUR SINGH V/S GOVERNMENT OF ANDHRA PRADESH, 1998 5 ALT 567

RAJESH LAXMICHAND MOTA V/S STATE OF GUJARAT, 2012 LawSuit(Guj) 48P KANAGALINGAM V/S STATE OF TAMIL NADU THROUGH COMMISSIONER AND SECRETARY TO

INDUSTRIES DEPARTMENT AND ORS, 1995 1 MadLJ 503

LALSAWMLIEN KUNGATE V/S ASHEM IBUNGO SINGH ALIAS NUNGSHI, 2007 1 GauLT 200

S P GURURAJA V/S EXECUTIVE MEMBER, KARNATAKA INDUSTRIAL AREAS DEVELOPMENT BOARD,

BANGALORE, 1998 3 KarLJ 223

KUSHUM LATA V/S UNION OF INDIA, 2006 6 SCC 180

IN RE: SANKAR GOPE V/S , 1995 CrLJ 1358

PAWAN KR RUIA V/S S P C B I (ECONOMIC OFFENCE WING), 1995 CrLJ 3726SANYAL LAHIRI AND COMPANY LIMITED V/S C B PAUL, 1995 CrLJ 3945

JAMNA AND ORS V/S STATE OF U P AND ORS, 1996 LawSuit(All) 736NEERAJ SHARMA V/S UNION OF INDIA, 2006 144 PunLR 8

ELEPHANT G RAJENDRAN V/S R K CHANDRAMOHAN, ADVOCATE ALSO HOLDING OFFICE OF CHAIRMAN,

BAR COUNCIL OF TAMIL NADU AND PONDICHERRY AND REGISTRAR GENERAL, 2010 LawSuit(Mad) 2857AJIT D PADIWAL V/S STATE OF GUJARAT, 2005 1 GLR 743

DILIP KUMAR ROY V/S STATE, 1994 CrLJ 3489

MUDDURESHWARA MINING INDUSTRIES V/S P G R SCINDIA, 1993 3 KarLJ 108

RAM NIWAS MODI (DR ) AND ANR V/S NIPON KR NATH, 2010 LawSuit(Gau) 375LALIT KUMAR MALHOTRA V/S JASBIR KAUR SOHAL, 2010 LawSuit(Del) 214Kushal Kumar V/S Central Bureau of Investigation, 2009 LawSuit(Del) 814AJAY HANDA V/S STATE OF PUNJAB, 1995 CrLJ 2002

STATE COUNCIL OF EDUCATIONAL RESEARCH AND TRAINING EMPLOYEES ORGANISATION AND THREE

ORS V/S STATE OF MANIPUR AND FOUR ORS, 1996 LawSuit(Gau) 214MAYA RANI GUIN V/S STATE OF WEST BENGAL, 2000 LawSuit(Cal) 491YATIN N OZA V/S STATE OF GUJARAT, 2007 LawSuit(Guj) 397SANDIP JAYKISHAN RATHOD (HALPATI), SARPANCH V/S STATE OF GUJARAT, 2010 LawSuit(Guj) 367RAMA SARAF AND ANR V/S STATE AND ORS, 2007 LawSuit(Del) 1840S VASUDEVA V/S GOVERNMENT OF KARNATAKA, 1999 1 KarLJ 116

ARUN KUMAR AGRAWAL V/S STATE OF KARNATAKA, 1999 1 KarLJ 603

DALIT SENA, KARNATAKA V/S KARNATAK UNIVERSITY, DHARWAD, 1999 2 KarLJ 1

GOPALCHAND KHANDELWAL V/S D R I, 2009 LawSuit(Del) 1106VIRABASAYYA PRABHAYYA HALLUR V/S STATE OF KARNATAKA, 2003 CrLJ 992

STATE OF PUNJAB; SUMEDH SINGH SAINI V/S DAVINDER PAL SINGH BHULLAR & ORS ETC ; DAVINDER PAL

SINGH BHULLAR & ORS, 2011 LawSuit(SC) 1276KIPA BABU V/S STATE OF ARUNACHAL PRADESH AND ORS, 1998 LawSuit(Gau) 263CENTRAL BUREAU OF INVESTIGATION V/S RAVI SHANKAR SRIVASTAVA, IAS, 2006 7 SCC 188

BADRI NARAIN TEWARI V/S STATE OF U P, 1993 LawSuit(All) 534BHUPAL ANNA VIBHUTE V/S COLLECTOR OF KOLHAPUR, 1996 3 BCR 717

GANIVADA PEDDI NAIDU S/O SIMMANNA V/S KOPPAKA VENKATA RAO S/O CHINNA SANYASAYYA AND;

STATE OF ANDHRA PRADESH REP BY ITS PUBLIC PROSECUTOR, 2010 LawSuit(AP) 202SUSHIL ANSAL AND ORS V/S STATE OF DELHI, 2009 LawSuit(Del) 1141SANJAY MISHRA V/S GOVT OF NCT OF DELHI AND ANR, 2012 LawSuit(Del) 650RAMESH KUMARI V/S BARHMA NAND @ BARHAM PARKASH, 1993 1 DMC 263

ARUN SHARMA V/S STATE OF MADHYA PRADESH, 2002 4 MPHT 574

KULDIP SINGH SON OF MAJOR SINGH V/S STATE OF PUNJAB, 1996 CrLJ 1619

SH R K JAIN (RAJ KUMAR JAIN HUF) V/S COMMISSIONER OF INCOME-TAX, 1996 221 ITR 136OM PRAKASH SHARMA V/S CBI, 2012 LawSuit(Del) 662SATYENDER KAUR AND ORS V/S STATE OF U P AND ANR, 2012 LawSuit(All) 1124SUKHDEV SINGH AND ANOTHER V/S STATE OF HARYANA AND ORS, 2003 LawSuit(P&H) 1850PIONEER DRIP SYSTEMS PVT LTD AND ORS V/S JAIN IRRIGATION SYSTEMS LTD, 2009 LawSuit(Bom) 2080SHARAD KUMAR AGGARWAL V/S STATE, 2012 LawSuit(Del) 2494GIAN SINGH V/S STATE OF PUNJAB & ANOTHER, 2012 LawSuit(SC) 623KISHORE SAMRITE V/S STATE OF U P AND ORS, 2012 LawSuit(SC) 717CONSUMER PROTECTION AND ANALYTIC COMMITTEE V/S STATE OF GUJARAT -MINISTRY OF

AGRICULTURE AND COOPERATION & 7, 2012 LawSuit(Guj) 993RBI MARKETING (NETHERLANDS) B V & ANR V/S STATE & ORS, 2012 LawSuit(Del) 3670DRAVIDA MUNNETRA KAZHAGAM V/S STATE OF TAMIL NADU, 2011 LawSuit(Mad) 3016A J K FERNANDEZ V/S CENTRAL BUREAU OF INVESTIGATION, 2009 LawSuit(Del) 1937SOOFIA MADANI V/S VARGHESE, 2009 LawSuit(Ker) 970JAIN STEEL INDUSTRIES AND OTHERS V/S CENTRAL BUREAU OF INVESTIGATION AND OTHERS, 2012

LawSuit(P&H) 5232ARUN BHANDARI V/S STATE OF U P AND OTHERS, 2013 LawSuit(SC) 21AMIT KAPOOR V/S RAMESH CHANDER & ANR, 2012 LawSuit(SC) 609AMIT KAPOOR V/S RAMESH CHANDER & ANR, 2012 LawSuit(SC) 609B SUDHAKAR REDDY V/S S H O , RGIA, CYBERABAD,SHAMSHABAD, RANGA REDDY DISTRICT AND AND

OTHERS, 2013 LawSuit(AP) 152SATYAVERT BHONSLE V/S UNION OF INDIA AND OTHERS, 2008 LawSuit(P&H) 2456DIRECTORATE OF REVENUE INTELLIGENCE V/S BHANU CHANDRA & ANR, 2013 LawSuit(Del) 811HUSSAINBEG HAYATBEG MIRZA AND ORS V/S STATE OF GUJARAT AND ORS, 2012 LawSuit(Guj) 1360SHEILA KAUL V/S STATE, 2013 LawSuit(Del) 635KANAK INSTALLMENTS PVT LTD; DEVPAL SINGH V/S STATE OF NCT OF DELHI & ANR, 2013 LawSuit(Del) 597KAVITA GUPTA & ANR V/S SANJAY KOCHAR AND ANR, 2013 LawSuit(Del) 565S KALYANI V/S CENTRAL BUREAU OF INVESTIGATION, 2013 LawSuit(Del) 456M H JAWAHIRULLAH AND ANR V/S GOVERNMENT OF TAMIL NADU AND ORS, 2013 LawSuit(Mad) 143OVEYAM RANJAN, PRESIDENT, NAMADHU DRAVIDA IYAKKAM; INDIAN AIRPORTS GROUND HANDLING

AGENTS ASSOCIATION V/S UNION OF INDIA AND ORS, 2013 LawSuit(Mad) 298RAILWAY CORRIDOR VIRODH KISHAN SANGH V/S UNION OF INDIA AND ORS, 2013 LawSuit(Guj) 524DEVENDRA PRATAP SINGH AND OTHERS V/S UNION OF INDIA, 2011 LawSuit(All) 3412DOLATRAM TEKCHAND HARJANI V/S STATE OF GUJARAT & 1, 2013 LawSuit(Guj) 574AJIT SINGH ALIAS MURAHA V/S STATE OF UTTAR PRADESH, 2006 LawSuit(All) 2213NAIB TAHSIL SADAR SRI VYAS NARAIN V/S STATE OF UTTAR PRADESH, 2003 LawSuit(All) 1638P ANANTHA RAMA SARMA V/S STATE OF ANDHRA PRADESH, 2009 LawSuit(AP) 755C THAYAPARAN V/S INSPECTOR OF POLICE, SPECIAL POLICE ESTABLISHMENT, 2013 LawSuit(Mad) 634YELAKALA RANGARAO AND OTHERS V/S STATE OF ANDHRA PRADESH AND ANOTHER, 2012 LawSuit(AP)1038

P SREE RAMULU NAIDU , P CHANDRESEKHAR REDDY V/S VENKATESWARA UNIVERSITY, TIRUPATI ,

VENKATESWARA UNIVERSITY, 1995 LawSuit(AP) 1034K JAGADISH V/S STATE OF KARNATAKA, 2013 LawSuit(Kar) 312MANOJ KUMAR SRIVASTAVA V/S UNION OF INDIA, 2007 LawSuit(All) 2167PALLAB DAS V/S CENTRAL BUREAU OF INVESTIGATION & ORS, 2012 LawSuit(Gau) 851ALL INDIA ANNA DRAVIDA MUNNETRA V/S ALL INDIA ANNA DRAVIDA MUNNETRA VS STATE ELECTION

COMMISSIONER, 2007 LawSuit(Mad) 2630ALL INDIA ANNA DRAVIDA MUNNETRA V/S ALL INDIA ANNA DRAVIDA MUNNETRA VS STATE ELECTION

COMMISSIONER, 2007 LawSuit(Mad) 2630M P SINGH V/S ASSISTANT PROVIDENT FUND COMMISSIONER AND ANOTHER, 2013 LawSuit(P&H) 3026NANHEY SINGH @ DINESH SINGH V/S STATE OF U P & OTHERS, 2013 LawSuit(All) 1732THALAPATHI PARTHIBAN V/S SUPERINTENDING ENGINEER, 2013 LawSuit(Mad) 1108UTTAM AND ORS V/S BHAGWATI, 2013 LawSuit(MP) 1346

CASES REFERRED :

R. V. BEDFORDSHIRE, 1855 (24) QB 81

A V/S B, 1945 AIR(PC) 18A V/S B, 1945 AIR(PC) 94CONNELLY V. D.P.P., 1964 AC 1254

DURAYAPPAH V. FERNANDO, 1967 (3) WLR 289R. V. METROPOLITAN POLICE COMMISSIONER, 1968 (1) AllER 763FLAST V. COHEN, 1968 (392) US 83DATA PROCESSING SERVICE V. CAMP, 1970 (397) US 150ATTORNEY GENERAL V. INDEPENDENT BROADCASTING AUTHORITY, 1973 (1) AllER 689UNITED STATES V. RICHARDSON, 1974 (418) US 166JEHAN SINGH V/S DELHI ADMINISTRATION, 1974 AIR(SC) 1146WARTH V. SELDIN, 1975 (422) US 490R. V. GREATER LONDON COUNCIL, 1976 (3) AllER 184GOURIET V. UNION OF POST OFFICE WORKERS, 1977 (3) AllER 70KURUKSHETRA UNIVERSITY V/S STATE OF HARYANA, 1977 (4) SCC 451D.P.P. V. HUMPHRYS, 1977 AC 1

RATAN SINGH V/S STATE OF MADHYA PRADESH, 1977 CrLJ 673

RANGE FOREST OFFICER V/S ANANT VENKATARAM HEGDE, 1978 CrLJ 1374

SUNIL BATRA V/S DELHI ADMINISTRATION, 1980 AIR(SC) 1579A V/S B, 1980 CrLJ 258

AKHIL BHARATIYA SOSHIT KARAMCHARI SANGH (RAILWAY) REPRESENTED BY ITS ASSISTANT GENERALSECRETARY ON BEHALF OF TUB ASSOCIATION V/S UNION OF INDIA, 1981 AIR(SC) 298VEENA SETHI V/S STATE OF BIHAR, 1982 (2) SCC 583PEOPLES UNION FOR DEMOCRATIC RIGHTS V/S UNION OF INDIA, 1982 (3) SCC 235MOHAMMED V/S STATE OF KERALA, 1982 CrLJ 1120

UPENDRA BAXI V/S STATE OF UTTAR PRADESH, 1983 (2) SCC 308D S NAKARA V/S UNION OF INDIA, 1983 AIR(SC) 130NATIONAL TEXTILE WORKERS UNION V/S P R RAMAKRISHNAN, 1983 AIR(SC) 75A R ANTULAY V/S RAMDAS SRINIWAS NAYAK, 1984 (2) SCC 500P NALLA THAMPY THERA V/S UNION OF INDIA, 1984 AIR(SC) 74BANDHUA MUKTI MORCHA V/S UNION OF INDIA, 1984 AIR(SC) 802RURAL LITIGATION AND ENTITLEMENT KENDERA V/S STATE OF UTTAR PRADESH, 1985 (2) SCC 431OLGA TELLIS V/S BOMBAY MUNICIPAL CORPORATION, 1985 (3) SCC 545EASTERN SPINNING MILLS SHRI VIRENDRA KUMAR SHARDA V/S RAJIV PODDAR, 1985 AIR(SC) 1668BANDHUA MUKTI MORCHA;WORKMEN OF CARPET INDUS FRY IN THE DISTRICT OF MIRZAPUR,UTTAR

PRADESH V/S UNION OF INDIA;STATE OF UTTAR PRADESH, 1986 (Supp1) SCC 553A V/S B, 1987 AllLJ 599

SHEELA BARSE V/S UNION OF INDIA, 1988 (4) SCC 226A V/S B, 1988 AllWC 828

RAMSHARAN AUTYANUPRASI V/S UNION OF INDIA, 1989 AIR(SC) 549COMMISSIONER OF INCOME-TAX V/S HIND LAMPS LIMITED, 1989 CrLJ 1013

STATE OF HARYANA V/S BHAJAN LAL, 1990 (Supp3) SCR 259STATE OF BIHAR V/S P P SHARMA, 1991 (1) Scale 539

CASES RELIED ON :

TALAB HAJI HUSSAIN V/S MADHUKAR PURSHOTTAM MONDKAR, 1958 AIR(SC) 376KHUSHI RAM V/S HASHIM, 1959 AIR(SC) 542RAGHUBIR SARAN V/S STATE OF BIHAR, 1964 AIR(SC) 1PAMPAPATHY V/S STATE OF MYSORE, 1967 AIR(SC) 286NIRMALJIT SINGH HOON V/S STATE OF WEST BENGAL, 1973 (3) SCC 753MUMBAI KAMGAR SABHA, BOMBAY V/S ABDULBHAI FAIZULLABHAI, 1976 (3) SCC 832JASBHAI MOTIBHAI DESAI V/S ROSHAN KUMAR, HAJI BASHIR AHMED, 1976 AIR(SC) 578AMAR NATH V/S STATE OF HARYANA, 1977 (4) SCC 137MADHU LIMAYE V/S STATE OF MAHARASHTRA, 1978 AIR(SC) 47STATE OF ORISSA V/S RAM CHANDER AGARWALA, 1979 AIR(SC) 87STATE OF BIHAR V/S J A C SALDANNA, 1980 (1) SCC 554FERTILIZER CORPN KAMAGAR UNION V/S UNION OF INDIA, 1981 AIR(SC) 344S P GUPTA;V M TARKUNDE;J L KALRA;IQBAL M CHAGLA;LILY THOMAS;A RAJAPPA;UNION OF INDIA;D N

PANDEY;R PRASAD SINHA V/S UNION OF INDIA;UNION OF INDIA;UNION OF INDIA;P SHIVSHANKAR;UNION

OF INDIA;UNION OF INDIA;P SUBRAMANIAN;UNION OF INDIA;K B N SINGH, 1982 AIR(SC) 149STATE OF HIMACHAL PRADESH V/S A PARENT OF A STUDENT OF MEDICAL COLLEGE, SHIMLA, 1985 (3)SCC 169

SACHIDANAND PANDEY V/S STATE OF WEST BENGAL, 1987 (2) SCC 295CHHETRIYA PARDUSHAN MUKTI SANGHARSH SAMITI V/S STATE OF UTTAR PRADESH, 1990 (4) SCC 449UNION CARBIDE CORPORATION V/S UNION OF INDIA, 1991 (4) SCC 584SUBHASH KUMAR V/S STATE OF BIHAR, 1991 AIR(SC) 420

Judgement Text:-

S Ratnavel Pandian, J

[1] We gave our conclusions in our earlier Order dated 27th August 1991 (reported in1991 (3) SCC 756) reserving the reasons to be given later. Accordingly, we render our

reasons in the present judgment.

[2] We feel that a prefatory note, though not the detailed facts of the case, is necessaryfor disposal of these appeals and writ petition. The facts culled out from variousdocuments placed before this court are as follows:

The Ministry of Defence, Government of India approved in August, 1980 aproposal forwarded by Army Headquarters (HQ) recommending, inter alia,the introduction of 155 mm calibre medium gun both towed and self-propelled to meet its defence operational requirements. The choice forobtaining the said gun system/guns was short listed in December, 1982 to(1) M/ s. Sofma of France, (2) M/s. A.B. Bofors of Sweden (briefly called'Bofors), (3) M/s. International Military Services of U.K. and (4) M/s. VoestAlpine of Austria. In November, 1985, there was a further shortlisting ofSofma and Bofors. Finally, the order was placed by the Government of Indiawith Bofors on 24th March, 1986 for the supply of 410 numbers (400 plus 10free) of 155 mm Field Howitzer 77-B gun system/ spare guns vide contractNo. 6(9)84/ D (GS-IV) for a total amount of SEK 8410.66 million (SwedishKroners) (equivalent to about Rs. 1437.72 crores or Rs. 14377.2 million).The related contract for supplying the gun package (towed) and other relatedagreements/ contracts were concluded and signed on 24th March 1986 withM/s. A. B. Bofors.

[3] On 17 April, 1987, some leading newspapers of our country gave prominentcoverage to a Swedish Radio Broadcast made in the previous day, broadcasting thatbribes had been paid to senior Indian politicians and key Defence figures to win thecontract awarded by the Government of India to M/s. Bofors of Sweden on 24 March,1986.

[4] The Swedish Radio repeated the allegation on 17 April, 1987 claiming that it haddocumentary proof of the payoffs in four instalments to Indian accounts in Swiss Banksand it had checked with Skandinaviska Enskilds Banken, the bankers for Bofors. On theother hand, Bofors denied paying any kickbacks to Indian politicians or officials for thedeal involving the supply of 155 mm Towed howitzers and also issued a statement on17th April, 1987, itself which statement reads thus:

"AB Bofors has not paid, or conspired to pay, any bribes in connection withthe order. All allegations to the contrary are hereby categorically denied."

[5] The Government of India on 17th April, 1987 issued a statement denying theallegations contained in the news items based on the broadcast report, made by theSwedish Radio and Television in connection with the arms order placed on Swedishfirm, Bofors and categorized the news item as false, baseless and mischievous. Thepart of the said statement reads thus:

"Government's policy is not to permit any clandestine or irregular paymentsin contracts. Any breach of this policy by any one will be most severely dealtwith."

[6] On 20th April, 1987, the Minister of Defence (Shri K. C. Pant) made a suo motustatement on the subject in Lok Sabha stating inter alia that on the eve of finalising thecontract, in response to a reiteration of Government's policy and a demand forconfirmation, M/s. Bofors had replied, vide their letter of the 10th March, 1986 that theydid not employ any Representative/ Agent in India for the project. However, foradministrative services, e.g. hotel bookings, transportation, forwarding of letters, telexesetc., they use the services of a local firm.

[7] The Defence Minister further stated "if any evidence is produced involving violationsof the law, the matter will be thoroughly investigated and the guilty, whoever they maybe, punished."

[8] A similar statement was made by the Minister of State for Defence in Rajya Sabhaon 21st April, 1987.

[9] This issue created a storm of controversies both in the Lok Sabha and Rajya Sabha.

Several issues were raised by the members in the respective Sabhasrelating not only to the alleged kickbacks paid by M/s Bofors for winning thecontract but also about the quality and suitability of the gun selected forprocurement.

[10] On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister intervening in thedebates in the Lok Sabha stated:

"......And like Panditji has said now, you show us any evidence, we do notwant proof. We will bring the proof. You show us any evidence that there has

been involvement of middlemen, of payoffs or of bribes or commissions, wewill take action and we will see that nobody however high-up is allowed to gofree.

[11] The then Defence Minister following the assurance made by the then PrimeMinister stated:

"The Prime Minister has already intervened on a number of occasions andhas said that there are no charges at the moment and if evidence is askedfor then we shall look into it. We shall inquire into it and if somebody is foundguilty we will punish him. This is the essence of what Members have beenasking."

[12] During the course of the discussion in Rajya Sabha and Lok Sabha, severalmembers demanded a probe with full details by a Parliamentary Committee. When thematter stood thus on 4th June 1987, the Swedish Embassy in India, forwarded a copy ofthe Report dated 1st June, 1987 of the Swedish National Audit Bureau (SNAB for short)with a note to the Ministry of External Affairs, Government of India, stating that what wasmade available to the Government of India was only one part of the Report of SNAB butnot report in its entirety and the rest was withheld by the Government of Sweden on thebank secrecy requirements. The summary of the observations of. the SNAB asextracted in the report of the JPC are as follows:

".......that an agreement exists between AB Bofors and . . . . . . * concerningthe settlement of commission subsequently to the FH 77 deal; and

------that considerable amounts have been paid subsequently to, amongothers, AB Bofors' previous agent in India."

(* Names not disclosed)

[13] However, the report did not disclose the names of the recipients of kickbacks asindicated above.

[14] This report of the SNAB (Swedish National Audit Bureau) was discussed by thethen Prime Minister with the leaders of the opposition parties on 11 June, 1987. The

Government decided to request the Speaker, Lok Sabha and the Chairman of the RajyaSabha to set up a Joint Parliamentary Committee (hereinafter referred to as 'JPC) toenquire into and establish the identities of the persons who received the payments. Butthe Speaker and the Chairman of the respective Sabhas declined to set up on their ownthe JPC to probe into the Bofors deal. Thereupon, the then Prime Minister during hismeeting with the leader of the opposition in Parliament on 17 June, 1987 indicated thatthe Government would move a motion in the Monsoon Session of Lok Sabha for theappointment of a Parliamentary Committee to probe into the Bofors deal. Accordingly,the Minister of Defence (Shri K.C. Pant) moved a motion on 29th July 1987 in the LokSabha for appointment of the JPC. While moving the motion, the Minister on 3rd August1987 after recalling the whole. sequence of events stated inter alia as follows :

"Two facts emerged from a careful study of the Report of the SwedishNational Audit Bureau. These are, firstly, that sizable payments were madein 1986. It would also be seen that the most crucial portion of the Report,which contains particulars of the recipients of the amounts paid by Bofors,have not been disclosed to us."

[15] Further in justification of the constitution of JPC, the Defence Minister added that"The Government has nothing to hide. The Government wants to get at the truth andthat is why this Committee has been set up."

[16] Thereafter, certain substitute motions were moved by the Parliament members andultimately after a discussion in both the houses, the JPC was constituted with theappointment of its Chairman on 28-8-88 totally consisting of 30 elected members - 20from Lok Sabha and 10 from Rajya Sabha for making the inquiry into the followingmatters:

i) Whether the procedures laid down for the acquisition of weapons andsystems, were adhered to in the purchase of the Bofors' gun;

ii) to ascertain the identity of the persons who received, and the purpose forwhich they received, payments of the following amounts:

a) SEK 170-250 million

b) SEK 29.5 million

c) SEK 2.5 million

from M/ s Bofors (as referred to in the Report of the Swedish National AuditBureau, received by the Government of India on June 4, 1987);

iii) arising out of the enquiry, if there is prima facie evidence that M/ s Boforshave in addition to payments mentioned in (ii) above, made any otherpayments for securing the Indian contracts, the identity of the persons whoreceived such payments shall be. ascertained;

iv) to determine if any Indian laws/ rules/ regulations have been violatedeither by M/s Bofors or by persons as indicated in (ii) and (iii) above.

[17] Of the elected members, two members by name Shri Mahabir Prasad and Smt.Sumati Oraon resigned w.e.f. 16-3-1988. One other member, Dr. K.G. Adiyodi died andthree other members of the Committee ceased to be members of the Committeeconsequent on their retirement from Rajya Sabha w.e.f. 2-4-1988. In place of themembers, who resigned and a member who died, three other members from the LokSabha were elected.

[18] The JPC submitted its report on 22nd April 1988 with its conclusion, the resultantportion of which reads as follows

(i) to (xii) ............................

(xiii) That there is no evidence to establish that the Bofors' payment totallingSEK: 319.4 million involved a violation of any Indian law.

(xiv) There is no evidence of any other payment having been made byBofors for winning the Indian contract."

[19] One of the Members gave his note of dissent disagreeing with the conclusions of

the Committee.

Para 7.176 of the Report of JPC reads as follows:

"7.176 The Committee note that during their discussions, in September,1987 with the Government of India team, the Bofors officials gave thefollowing information regarding the names of Companies and details ofpayments made to them by way of winding-up charges:-----

i) SVENSKA INC. PANAMA - SEK 188.4 million

ii) MORESCO/ MOINEAO S. A. (PITCO) Geneva - SEK 81 million in threeinstalments of SEK 37 million, SEK 12 million and SEK 32 million.

iii) A.E. SERVICES Ltd.,.U.K. - SEK 50 million"

[20] It is further seen from the Report of the JPC that Mr. Lars Gothlin, Chief Jurist andSenior Vice-President of the Noble Industries was examined by the JPC and during theexamination his attention was drawn to a statement of Mr. Thunholm, Chairman of theNoble Industries, which is the holding company of M/s. A.B. Bofors that so far as he wasaware, payments had been made to Indians or to an Indian company in connection withthe contract. Of course, the Chief Jurist finding himself in a piquant situation, said thatthe words of Dr. Thunholm were twisted. (Vide paras 7.41 and 7.56 of the Report ofJPC).

[21] In spite of the conclusion in the Report of the JPC, allegations of malpractices inthe deal with Bofors, payments of kickbacks and receipt of illegal gratification werepersistently reiterated and the matter was relently agitated. Meanwhile, there was achange of Government. In the aforesaid circumstances, the Superintendent of Police,CBI/ DSPE/ ACU-IV, New Delhi registered a First Information Report on 22nd January1990 in Crime No. RC 1(A)/90/ACU-IV under Section 120-B read with Sections 161,162, 163, 164 and 165-A of the Indian Penal Code read with Sections 5(2), 5(1) (d) and5(2)/5(l)(c) of the Prevention of Corruption Act, 1947 read with Sections 409,420,468and 471 of the Indian Penal Code against 14 accused of whom three are named, theybeing (1) Shri Martin Ardbo, former President of M/s. A.B. Bofors, Sweden, (2) ShriChadha alias Win Chadha, S/o. Shri Assa Nand, President of M/s. Anatronic General

Corporation/ Anatronic General Companies Ltd., C/ 4, Main Market, Vasant Vihar, NewDelhi and Shri G.P. Hinduja, New Zealand House, Hay Market, London SW-1. The restof the 11 accused are stated in general as directors/ employees/ holders/ beneficiariesof account code and public servants of the Government of India. The preface of the FirstInformation Report shows that the case was registered "on the basis of reliableinformation received from certain sources, certain facts and circumstances that havebecome available, through media reports dated 1st June 1987 of the Swedish NationalAudit Bureau, certain facts contained in the report dated 22nd April 1988 of the JointParliamentary Committee (JPC) and the report dated 28th April 1988 of the Comptrollerand Auditor General of India (CAG)". The FIR gives a detailed sequence of the eventsrelating to the purchase of guns from M/s. A.B. Bofors, Sweden and the relatedagreements entered thereupon in violation of the Government's policy i.e. not to involveany agent and the existing law of this land. Various allegations are made mention of inthe FIR regarding the payments of bribes/ kickbacks and receipt of illegal gratification,the debates made in the Parliament, the correspondences among-the parties and thevarious findings of the JPC. It is further averred in the First Information Report that evenin the letter dated 3-10-86, sent to the Swedish National Bank, Bofors had referred tosome of the payments to Svenska Inc. and the code name 'Mont Blanc' as "commissionpayments" and that the payment to M/s. Moresco /Moineao/SA/ Pitco, Geneva wasdeposited by Bofors in three code name accounts, namely, "Lotus" in Suissee BankCorporation, 2 Rue de la Confederation 1204, Geneva; "Tulip" in ManufacturersHannover Trust Company, 84 Rue du Rhone, 1204, Geneva and "Mont Blane" in CreditSuissee, 2 Place Belle Air, 1204, Geneva and that these payments to code nameaccounts are without mentioning or disclosing the payers' names. Ultimately, referencewas also made in paragraph 112 of the FIR to the statement of Mr. Thulholm, Chairmanof Noble Industries reading:

"As the report of JPC discloses, Shri Thulholm, Chairman of Noble Industrieshad stated that so far as he was aware, payments had been made to Indiansor to an Indian company in connection with the contract. Shri Thulholm hadalso stated that he could not guarantee that bribes had not been paid. Boforsbeing a subsidiary of Noble Industries, these statements of Shri Thulholmare important."

[22] The core of the allegations in the FIR is that the accused, named and unnamed,entered into a criminal conspiracy, obtained illegal gratification in the form of moneyfrom BOFORS, a Swedish company through the agent/ firms/ companies/ persons as

motive or reward for such public servants who by corrupt or illegal means or byotherwise dishonestly using their official position as public servants caused pecuniaryadvantage to themselves, BOFORS, the agents and others in awarding contracts toBOFORS for the supply of guns to the Government of India and in the transactioncommitted the offences of criminal breach of trust, cheating, forgery and using of forgeddocuments. It appears that the CBI has commenced its investigation during the courseof which it has recorded statements of witnesses and took into its custody variousdocuments and files relating to this Bofors deal.

[23] While it was so, the CBI moved an application before the Special Judge, namely,Shri R.C. Jain requesting to issue a letter rogatory/ request to Switzerland urgently forgetting the necessary assistance so that the investigation can be conducted inSwitzerland lest very important and relevant evidence would remain uncollected and thecause of justice would be frustrated.

[24] Be it noted, the compelling reasons which necessitated the CBI to file thatapplication have already been given in brief in our earlier order dated 27th August 1991reported in (1991) 3 SCC 756. Therefore, we are not repeating those facts in this finaljudgment. The Special-Judge after hearing the then Additional Solicitor General of India,Deputy Legal Advisor of CBI and Senior Public Prosecutor allowed that application byhis order dated 5th February 1990. The relevant portion of which reads thus:

"In the result, the application of the CBI is allowed to the extent that arequest to conduct the necessary investigation and to collect necessaryevidence which can be collected in Switzerland and to the extent directed inthis order shall be made to the Competent Judicial Authorities of theConfederation of Switzerland through the Ministry of External Affairs,Government of India subject to the filing of the requisite/paper undertakingrequired by the Swiss Law and assurance for reciprocity."

[25] The Special Judge also directed certain documents to be sent along with this letterof rogatory. Further, the learned Judge has put up a note reading thus:

"Needless to mention that no (sic---any) observation made in this order shalltantamount to expression of opinion at any subsequent stage of enquiry ortrial."

[26] It appears that the letter rogatory was sent back by the order of the Cantonal Courtof Geneva for compliance of certain procedural formalities in that said order. It was atthis relevant time that Shri Harinder Singh Chowdhary, an Advocate claiming to be theGeneral Secretary of an Organisation named as Rashtriya Jan Parishad whichaccording to him, is devoted to uphold the "Rule of Law, fight against injustice in anyfield and abide by the Constitution and respect ideals and institutions" filed CriminalMiscellaneous Case No. 12 of 1990 before the Special Court under Art. 51 -A of theConstitution of India seeking the following prayers:

"In the premises your petitioners humbly request that in order to maintain thedignity, prestige and the fair name of the country and the ideals enshrined inthe Constitution no rogatory letter be issued on the formal request of the CBIunless the allegations against named persons are established to thesatisfaction of this Hon'ble Court:

It is further requested that no request for rogatory or freezing bank accountbe made to Swiss Government unless the concerned persons are noticedand heard on the subject:

It is further requested that the petitioner may be permitted to join duringinquiry before this Hon'ble Court in the capacity of public interest litigant:

It is further requested that inquiry under Section 340, Cr.P.C. be held todetermine the alleged offence committed by various persons and till thenproceedings of rogatory be. stopped."

[27] The Special Judge, Shri V. S. Aggarwal dismissed that petition by his order dated18th August 1990 observing thus:

"It goes without saying that Letter Rogatory had been issued by Shri R.C.Jain, then Special Judge, Delhi on recording his satisfaction that it should beissued. The petitioner has appended along with the application the copy ofthe order passed by the Cantonal Court, Geneva. It is accompanied by itsEnglish translation. It clearly recites that application for judicial assistanceshould be sent back after completing the procedural formalities mentioned inthe order. It cannot, therefore, be said that the letter of request had been

rejected. It further does not call for any fresh reconsideration in this regardpertaining to the order passed by my learned predecessor.

[28] Coming to the question of locus standi of Shri Harinder Singh Chowdhary to file thispetition requesting the prayers mentioned ibid, the learned Judge held thus:

"Examining the present case on the touchstone of the above mentionedcases, it is clear that though petitioner is a member of the noble profession,but while the matter is still at investigating stage, he cannot be permitted tointervene and the doors of the Court will not be ajar for him. He has no directinterest in such investigation nor suffers any special loss. Therefore, at thethreshold, one can safely conclude that he has no locus standi to claimreliefs mentioned above."

[29] Consequent upon the above findings, the Special Judge dismissed the petitionstating, "This request of the learned counsel cannot be accepted." Thereafter, theSpecial Judge issued (1) Note of Compliance, and (2) Amended letter rogatory onAugust 22, 1990.

[30] On being aggrieved by the order of the Special Judge dated August 18, 1990, ShriHarinder Singh Chowdhary filed a criminal revision before the High Court of Delhi underSections 397/482 of the Code of Criminal Procedure raising multiple questions of lawchallenging the legality and validity of not only the impugned order but also the veryregistration of the FIR and the investigation carried thereon by the CBI. The reliefssought for in the criminal revision are as follows:

"(a) to quash the entire FIR No. RC 1(A)/90/ACU-IV dated January 22, 1990and criminal proceedings covered by the same.

(b) or remand the case to the Special Judge permitting the petitioner toargue his case before the lower Court and also direct the Court below todecide the petition on merits.

(c) direct the Court that no request for rogatory letters be made to SwissGovernment, till the petitioner is heard on his application.

(d) the petitioner may be permitted to join during the inquiry to determine thequestion of dual criminality before the learned Special Judge in the capacityof public interest litigant, and also direct the learned Special Judge to decidethe question of dual criminality before issuing the letter rogatory.

(e) direct the learned Special Judge not to issue any rogatory letter on theformal request of the CBI unless the allegations against named persons isestablished to the satisfaction of the Special Judge by cogent evidence."

[31] This revision petition has been registered as Criminal Miscellaneous (Main) No.1821 of 1990 on the file of the High Court of Delhi. During the hearing of this case,several applications seeking impleadment/ intervention were filed by various politicalparties and others of whom one was by Mr. Shanti Bhushan, an Advocate of this Barand another by Mr. N. Ram and so on.

[32] The above criminal case (Criminal Miscellaneous (Main) Case No. 1821 of 1990)was listed before Justice M.K. Chawla, the then Judge of the High Court of Delhi.Several applications were taken before him by the impending interveners seekingseveral prayers such as permitting them to implead themselves in the revisionproceedings and affording them adequate opportunities to make their submissionsbefore the Court opposing the revision petition. As the prayers of the interveners werenot acceded to, the Janata Dal etc. filed a special leave petition (criminal) No. 2320 of1990 before this Court which passed an order on 10th December 1990, the relevantportion of which is as follows:

"...........We are of the view that the learned Judge should dispose of theseapplications by a judicial order before the matter is reserved for judgmentand in case the applications are not accepted, judgment should not bedelivered for at least 2 days after such an order on these writ petitions (sicon the revision petition) is made to enable them to move this Court."

[33] In compliance of the above direction of this Court, Mr. Justice Chawla heard Mr.Ram Jethmalani, Sr. Counsel who appeared on behalf of Janata Dal and Mr. PrashantBhushan. It appears Mr. Jethmalani was constrained to make a request to Mr. JusticeChawla to recuse himself from the case, which request, of course, was rejected by thelearned Judge. Thereafter, a petition for recusation was filed which was also dismissed.

Mr. Justice Chawla after hearing the learned counsel for Mr. H.S. Chowdhary as well asthe interveners, passed his final impugned order on 19th December 1990, dismissingthe revision petition, the relevant portion of the said order reads thus:

"In my opinion, the case of the petitioner does not fall within the ambit andscope of the law laid by the Supreme Court in Bandhua Mukti Morcha v.Union of India, 1986 Supp SCC 553. So, I hold that the petitioner has nolocus standi to file the present revision petition and is thus not, maintainableon his behalf. The same is hereby dismissed.

As a consequence of the dismissal of the present petition, holding that thepetitioner has no locus standi, the applicants have no right to be impleadedand their impleadment/ intervention applications are also rejected.

This is not the end of the matter. There is yet another process by which theCourt can take judicial notice of any illegality being committed by any Court,with a view to prevent the injury being caused to the known or unknownaggrieved party."

[34] The learned Judge of the High Court Mr. Justice M.K. Chawla after referring toSections 119, 397, 401 and 482 of the Code of Criminal Procedure concluded thus:

"In the light of the settled legal proposition, I have carefully examined therecord placed before me. Prima facie, I am of the opinion that the followingillegalities have been committed by the trial Court:

1) That the FIR filed by the CBI in this case on the face of it does notdisclose any offence. It is in violation of the provisions of Section 154,inasmuch as no investigation can be carried out for an offence alleged tohave been committed outside India, and the Court of the Special Judgeshould not have taken cognizance of the same.

2) That the C.B.I. should have exhausted their remedies before the J.P.C.before launching proceedings in the Court of the Special Judge inasmuch asthe same investigating agency cannot be allowed to override the findings ofthe JPC, and this aspect has not been taken into consideration by the trial

Court.

3) The Court of the, Special Judge who issued letter rogatory had nojurisdiction to entertain such a request or to pass any order on it.

4) The so-called memo of understanding relied upon by the trial Court wascontrary to the Municipal law of the land and is violative of Articles 21 and300-A of the Constitution of India.

5) That-the CBI is not a legally constituted force which can be entrusted withthe investigation; and

6) That the investigation on the face of it is biased and influenced by outsideagencies.

So, I suo motu take cognizance while exercising my powers under Sections397 and 401 read with Section 482 of the Code, and direct the office toregister the case under the title, Court on its own motion v. State and CBI.

Consequently, I call upon the CBI and the State to show cause as to why theproceedings initiated on the filing of FIR No. RCI(A)/ 90/ ACU-IV dated22-1-90, pending in the Court of Shri V.S. Aggarwal, Special Judge, Delhi,be not quashed."

[35] Feeling aggrieved by the above order. of Justice Chawla of Delhi High Court, allthese criminal appeals and the Writ Petition have been filed before this Court. ThisCourt on 20th December 1990 in Criminal Appeal No. 304 of 1991 (arising out of SLPCriminal No. 2476 of 1990 filed by the Janata. Dal) passed the following order grantinginterim stay : .

"In the meantime, the reasons leading to registration of the suo motuproceedings would not be operative. There shall be interim stay ofproceedings including hearing before the High Court."

[36] We have given a gist of all those appeals as well as the writ petition in our Orderdated 27th August 1991 : (reported in 1991 (3) SCC 756). Therefore, we feel it notnecessary to reiterate the same.

[37] After carefully considering all aspects of the case and examining the rivalcontentions of the parties we have recorded our conclusions in the earlier order asfollows:

"1. Mr. H.S. Chowdhary has no locus standi (a) to file the petition underArticle 51 -A as a public interest litigant praying that no letterrogatory/reguest be issued at the request of the CBI and he be permitted tojoin the inquiry before the Special Court which on February 5, 1990 directedissuance of letter rogatory/ request to the Competent Judicial Authorities ofthe Confederation of Switzerland; (b) to invoke the revisional jurisdiction ofthe High Court under Section 397 read with S. 401 of the Code of CriminalProcedure challenging the correctness, legality or propriety of the orderdated August 18, 1990 of the Special Judge; and (c) to invoke theextraordinary jurisdiction of the High Court under Section 482 of the Code ofCriminal Procedure for quashing the first information report dated January22, 1990 and all other proceedings arising therefrom on the plea ofpreventing the abuse of the process of the Court.

2. In our considered opinion, the initiation of the present proceedings by Mr.H. S. Chowdhary under Art. 51-A of the Constitution of India cannot comewithin the true meaning and scope of public interest litigation.

3. Consequent upon the above conclusions (1) and (2), the appellantsnamely, Janata Dal, Communist Party of India (Marxist) and Indian Congress(Socialist) who are before this Court equally have no right of seeking theirimpleadment/ intervention. For the same reasons, Dr. P. Nalla ThampyThera also has no right to file the Writ Petition (Criminal) No. 114 of 1991 aspublic interest litigant.

4. Having regard to the facts and circumstances of the case, the suo motuaction of Mr. Justice M.K. Chawla in taking cognizance in exercise of thepowers under Sections 397 and 401 read with Section 482 of the Code

based on the convoluted and strained reasoning and directing the office ofthe High Court of Delhi to register a case under the title Court on its motionv. State and CBI cannot be sustained.

Consequent upon the above conclusion No. (4), we hold that the directionsof Mr. Justice M.K. Chawla calling upon the CBI and the State to show causeas to why the proceedings initiated on the strength of the first informationreport dated January 22, 1990 be not quashed, cannot be sustained.

In the result, we agree with the first part of the order dated December19,1990 of Mr. Justice M. K. Chawla holding that parties have no locusstandi. We, however, set aside the second part of the impugned orderwhereby he has taken suo motu cognizance and issued show cause noticeto the State and CBI and accordingly the show cause notice issued by him isquashed.

In view of the above conclusions, all the proceedings initiated in pursuanceof the first information report dated January 22, 1990 relating to Crime No.RC/(A)/90/ACU-IV on the file of the Special Judge, Delhi including theissuance of the letter rogatory/ request as they stand now, remain unaffectedand they can be proceeded with in accordance with law.

In Summation

Criminal Appeals Nos. 304, 305, 306, 307, 308 and 309 of 1991 aredismissed, Criminal Appeal No. 310 of 1991 filed by the Union of Indiaagainst the order dated September 5, 1990 of the High Court is dismissed inview of the fact that the said order does not survive for consideration on thepassing of the final order dated December 19, 1990. The Writ Petition No.114 of 1991 is also dismissed.

Criminal Appeal No. 311 of 1991 filed by Union of India and CBI is allowedfor the reasons stated above."

[38] The sum and substance of the order of Mr. Justice Chawla in this regard, is thatHarinder Singh Chowdhary has no locus standi to file the revision petition andresultantly his revision petition was not maintainable and consequently all the applicants(interveners) have no right to be impleaded and that the applications for impleadment/intervention were liable to be rejected.

[39] Mr. Anand Dev Giri, the learned Solicitor General (as he then was) and thereafterMr. Altaf Ahmad, the present Additional Solicitor General appearing on behalf of theUnion of India as well on behalf of CBI and Mr. Ram Jethmalani and Mr. ShantiBhushan, learned senior counsel assisted by Mr. Prashant Bhushan appearing inCriminal Appeals Nos. 304, 305 and 307 of 1991 and Mr. K.G. Bhagat, the learnedsenior counsel appearing in Criminal Appeals Nos 306 and 311 of 1991 on behalf of Mr.H.S. Chowdhary besides a battery of lawyers representing their respective partiesadvanced respective arguments for a considerable length of time raising multiplequestions of law with reference to the various legal aspects. Though, more often thannot, there were some heated arguments -occasionally tinged with acrimony and tumult -all the learned counsel made their erudite submissions and scholarly debate in forensiceloquence exhibiting their profound knowledge of law -particularly in the criminal field.

[40] The resultant propositions deducible from the rhetorical submissions and thecounter-submissions expostulated with reference to various provisions of theConstitution, Code of Criminal Procedure (hereinafter referred to as 'the Code) andother cognate statutes can be summarised as follows:

1. The unrestricted and inherent powers of Subordinate Courts - both Civiland Criminal - apart from their ancillary and incidental powers, in theabsence of any provision to the contrary could and should be exercised exdebito justitiae for ends of justice, that is for taking steps as may benecessary to enable the Courts in discharge of the judicial functions to issuedirections or pass appropriate orders without causing prejudice to either ofthe parties for administering substantial Justice whenever legitimateoccasion for doing so arises.

2. The discretionary power of the Special Judge in issuing Letter Rogatoryon 5-2-1990 even before the introduction of Section 166-A of the Code ofCriminal Procedure (hereinafter referred to as "the Code") in exercise of hisuninhibited inherent powers is supported by the Memorandum ofUnderstanding (MOU) creating a contractual arrangement between the two

countries, namely, India and Switzerland which arrangement amounts tobilateral international treaty having a binding force between the twocontracting parties and also in substantial compliance of Section 285 of theCode.

3. Criminal Courts are not forbidden in participating in the course ofinvestigation in the matter of collection of evidence; and in fact the Courtsare invested with statutory power to take active role and aid the investigationin gathering evidence as contemplated under Sections 91, 93, 94, 105 (asamended by the Amending Act XXXII of 1988), 284, 285 etc. of the Code aswell as under Sections 156(3), 157, 159, 167 (2), 190, 202, 164, 306 etc. ofthe, Code.

4. Neither an accused nor a public interest litigant has right to question themode of collection of evidence of the investigating agency and interfere inthe progress of the investigation.

5. The re-submission (after complying certain procedural formalities) of theLetter Rogatory on 22nd February 1990, subsequent to the introduction ofSection 166-A of the Code by an Ordinance promulgated on 19th February1990 and replaced by an Act coming into force with retrospective effect from19-2-1990 is supported by sanction of law.

6. Whether the Memorandum of Understanding (MOU) is constitutionallyinvalid, being contrary to Articles 73 and 77 and in conflict with and opposedto Articles 21 and 300A of the Constitution?

7. Whether Courts can take judicial notice of the MOU without its beinggazetted and ratified in compliance with the Vienna Convention on the Lawof Treaties, 1969?

8. Whether the Central Bureau of Investigation (CBI) is a legally constitutedbody and empowered with powers of registering and investigating acognizable offence?

9. Whether the contents of the First Information in the present caseconstitute a cognizable offence warranting the registration of a case underSection 154 of the Code

10. What are the circumstances under which the Criminal Court can suomotu exercise its revisional jurisdiction?

11. Is there any bar for the Courts to examine the report of the JointParliamentary Committee (JPC) constituted by the Parliament under theRules of Procedure made under Article 118 of the Constitution or for asuccessor Government to question its findings in the absence of anynegation or modification or change of the findings of the Report?

[41] The learned counsel for the parties while advancing their arguments on the abovepropositions posed several ancillary questions of law. Mr. Bhagat made a specialreference to The Geneva Convention Act of 1960, The Extra Convention Act of 1962,The International Monetary Fund and Banking Act of 1945, The Diplomatic PrivilegesAct of 1964 etc. in support of his contention that the present MOU cannot partake of theforce of law and that it cannot be invoked. A host of decisions were cited at the Bar insupport of the above propositions.

[42] It is not only appropriate but also has become necessary in this connection to pointout that the grounds taken in the petition filed by Mr. H.S. Chowdhary before the SpecialJudge were only with reference to issue of Letter Rogatory and the authority of the CBIto register a case in the absence of any named public servant being brought as accusedin the FIR and the power of CBI to investigate the case since the JPC had alreadyrendered its findings on the subject-matter in issue. One other contention was that theregistration of the case was on account of political rivalry entertained by the Janata DalGovernment as against the outgoing Congress Government.

[43] The Special Judge disposed of the petition holding, "Shri H.S. Chowdhary has nolocus standi to claim the reliefs sought for in the petition." In the revision petition, Mr, H.S. Chowdhary took certain additional grounds stating that the First Information Reporthas not disclosed the commission of any cognizable offence and the CBI has gonewrong in registering the FIR in the absence of any additional evidence which were notavailable before the JPC and that the Letter Rogatory ought not have been issued

without recording evidence. The High Court dismissed the revision petition as being notmaintainable on the sole ground of locus standi and did not go to other questions of lawraised by Mr. Chowdhary. Only for the first time before this Court, the parties arelitigating on the above stated propositions of law which except for one or two haveneither been raised before the Courts below nor agitated. Strictly speaking, as thepresent appeals are preferred challenging only the judgment of the High Court dated19-12-90, this Court is called upon to examine the tenability of the reasons given by theHigh Court as regards the locus standi of Mr. H.S. Chowdhary and in addition, theinvocation of the suo motu action of the High Court in exercise of its revisionaljurisdiction. This Court while disposing of Criminal Appeal No.306/91 filed by Mr. H.S.Chowdhary challenging the first part of the order of the High Court dismissing hisrevision petition on the ground that he has no locus ,standi, has confined itsconsideration only on that point. However, with regard to the various questions of law,we expressed our view, in our earlier Order as follows : (1991 (3) SCC 756 (Para 26)):

"Even if there are million questions of law to be deeply gone into andexamined in a criminal case of this nature registered against specifiedaccused persons, it is for them and them alone to raise all such questionsand challenge the proceedings initiated against them at the appropriate timebefore the proper forum and not for third parties under the garb of publicinterest litigants."

[44] We have also given the reasons for not dealing with the specific propositions raisedby the respective counsel in our earlier Order observing thus (1991 (3) SCC 756 (Para25)):

"Therefore, under these circumstances one should not lose sight of thesignificant fact that in case this Court pronounces its final opinion orconclusions on the issues other than the general issues raised by theappellants as public interest litigants, without hearing the really affectedperson/persons, such opinion or conclusions may, in future, in case theinvestigation culminates in filing a final report become detrimental andprejudicial to the indicated accused persons who would be totally deprived ofchallenging such opinion or conclusions of this apex Court ' even if theyhappen to come in possession of some valuable material to canvass thecorrectness of such opinion or conclusions and consequently their vestedlegal right to defend their case in their own way would be completely nullified

by the verdict now sought to be obtained by these public interest litigants."

[45] However, as we have expressed our view "that the question as to whether laws areso petrified as to be unable to respond to the challenges made will be dealt with in detailin our main judgment, we have to examine the law as regards the scope and ambit ofpublic interest litigation and the power of the High Court in taking suo motu cognizancein exercise of its powers under Sections 397 and 401 read with Section 482 of the Codewhich are the general issues as indicated by us in our earlier Order.

[46] We hasten to add that we will not be justified to make disembodiedpronouncements or any observation on seriously disputed questions of law and factstaking its cue from mere affidavits, that too not from the person aggrieved or affectedand without the battle lines being properly drawn by the affected parties.

[47] We shall now briefly deal with the scope and object of 'public interest litigation'(PIL),. the horizon of which is widely extended and which at present constitutes a newchapter in justice delivery system acquiring a significant degree of importance in the,modern legal jurisprudence practiced by Courts in many parts of the world, based on theprinciple, "Liberty and Justice for All".

Public Interest Litigation - its origin and meaning

[48] The question, "what 'PIL' means and is?" has been deeply surveyed, explored andexplained not only by various judicial pronouncements in many countries, but also byeminent Judges, jurists, activist lawyers, outstanding scholars, journalists and socialscientists etc. with a vast erudition. Basically the meaning of the words 'Public Interest'is defined in the Oxford English Dictionary, 2nd Edition, Vol. XII as "the common wellbeing .........also public welfare".

[49] In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined thus:

"PUBLIC INTEREST (1) A matter of public or general interest "does notmean that which is interesting as gratifying curiosity or a love of informationor -amusement but that in which a class of the community have a pecuniaryinterest, or some interest by which their legal rights or liabilities are affected".[per Cambell C.J., R. v. Bedfordshire, (1855) 24 LJQB 81 (84)].

[50] In Black's Law Dictionary (Sixth Edition), 'public interest' is defined as follows:

Public Interest - Something in which the public, the community at large, hassome pecuniary interest, or some interest by which their legal rights orliabilities are affected. It does not mean anything so narrow as merecuriosity, or as the interests of the particular localities, which may be affectedby the matters in question. Interest shared by citizens generally in affairs oflocal, State or national government .................................."

[51] The expression 'litigation' means a legal action including all proceedings therein,initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy.Therefore, lexically the expression 'PIL' means a legal action initiated in a Court of Lawfor the enforcement of public interest or general interest in which the public or a class ofthe community have pecuniary interest or some interest by which their legal rights orliabilities are affected. There is a host of decisions explaining the expression 'PIL' in itswider connotation in the present day context in modern society, a few of which we willrefer to in the appropriate part of this judgment.

[52] It would be quite appropriate in the case on hand to analyze both the basic featuresand the evolution and profound transformation of the developing and growing PIL inmodern society. Suffice it to say that the challenges facing this meliorable litigation areexamined in the light of their social, economic, political and ideological causes; and thatthe solutions to be adopted by the legal system to meet those challenges are explored,since there is still an ocean of unmet needs. These challenges are; (1) The expandedrole of Courts in the modern 'social' State and the new demands for judicialresponsibility; (2) the rise and growth of varied systems of judicial review and thelegitimacy of such development; (3) the emergence of the notion of 'access to justice' asa judicial answer to egalitarian ideals and demands for effectiveness, and thedevelopment of PIL, and (4) the role of Courts in promoting the legal system in thearena of PIL. The relentless efforts taken by Courts in meeting all those challenges, infact, strive for a optimality in which the interest of the least advantaged is given anoverriding priority. During the last three decades, judicial activism has opened up newdimension for the judicial process and has given a new hope to the justice - starvedmillions. On the question of legitimacy of the PIL and the significant importance of itsvarious aspects in the context of the present day felt needs, stimulated by theemergence of a variety of new social movements and societal exigencies, this Court haslaid down a long line of decisions, outlining the evolution of PIL, its vital issues and

problems relating to the focus, choice of relief methods, the means and theadministrative strategy for litigation and the demand for distributive justice for resolvingthe complicity of social problems and creating genuine initiatives so that this newactivism may be more meaningful social justice. Thus the concept of PIL which hasbeen and is being fostered by judicial activism has become an increasingly importantone setting up valuable and respectable records, especially in the arena of constitutionaland legal treatment for 'the unrepresented and underrepresented'.

[53] The period of 1960s in United States of America was the important period of socialembroilment during which not only manifold changes to many institutions took place; butalso significant reforms of which public interest litigation was one were proposed andtried. The concept of PIL though had its origin in U.S.A. over the march of years it haspassed through various changes and modifications in their common law based systems.It is not necessary to examine all those modifications and changes in the structure of thepublic law of that country and the manner in which the legal services have beenredistributed in American society except saying that the strict requirement of legalinterest has been diluted and attenuated in the country of its origin. Similarly, thecommon law based systems in other parts of the common wealth countries have alsoundergone various changes. Legal aid programmes in Australia and Canada have beenrestructured to serve divergent aspects of the public interest. Some of the countrieshave gone to the extent of broadening its scope even beyond litigation and includingmany varieties of negotiations and even nonlitigating approaches. Thus the definition ofPIL emerged from historical context in which the commonality of the various forms oflegal representation involving the basic and fundamental rights of a significant segmentof the public demanding vindication of its rights has been recognised in various parts ofthe world.

[54] The emergence of the concept of PIL, in the Indian legal system has beensuccinctly explained by P.N. Bhagwati, J. (as he then was) in one of his articlescontributed under the caption 'Social Action Litigation : The Indian Experience' thus :

"The judiciary has to play a vital and important role not only in preventingand remedying abuse and misuse of power but also in eliminatingexploitation and injustice. For this purpose it is necessary to makeprocedural innovations in order to meet the challenges posed by this newrole of an active and committed judiciary. The summit judiciary in India,keenly alive to its social responsibility and accountability to the people of thecountry, has liberated itself from the shackles of Western thought, made

innovative use of the power of judicial review, forged new tools, devised newmethods and fashioned new strategies for the purpose of bringing justice forsocially and economically disadvantaged groups ...................................During the last four or five years however, judicial activism has opened up anew dimension for the judicial process and has given new hope to the justicestarved millions of India."

(vide 'Role of the Judiciary in Plural Societies' published in 1987.)

[55] Indian law has historically been strongly identified - both in theory and practice -with a tradition which has been concerned with the rights and duties of individuals. Yetin recent years it has been. recognized that this tradition is inadequate to cope with awide range of problems arising out of inequality of means, opportunities andentitlements in -society. This conflict has generated increasing discussion of PIL, andalso the development of a whole new corpus of law for effective and purposefulimplementation of PIL and institutions explicitly concerned with the manner andtechniques by which the public interest is, and can be, safeguarded by the legal system.

[56] The seed of the concept of PIL were initially sown in India by Krishna Iyer, J. in1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai, (1976)3 SCC 832 : (AIR 1976 SC 1455), he while di